Nees v. Hocks

Citation536 P.2d 512,272 Or. 210
Parties, 115 L.R.R.M. (BNA) 4571 Vickie NEES, Respondent, v. Robert W. HOCKS, doing business under the assumed business name of Hocks Laboratories, and Dan Hocks, Appellants.
Decision Date12 June 1975
CourtSupreme Court of Oregon

Donald H. Greene, Portland, argued the cause for appellants. With him on the brief were Burrows & Greene, Portland.

Elden M. Rosenthal, Portland, argued the cause for respondent. With him on the brief were Pozzi, Wilson & Atchison, Portland.

DENECKE, Justice.

The principal question is whether the plaintiff alleged and proved conduct of the defendants which amounts to a tort of some nature.

In this court the defendants sought to have us re-examine the evidence. As we have so often stated, we cannot reweigh the evidence and if there is any evidence to support the verdict of the jury, we must affirm.

The jury found for plaintiff; therefore, we must consider the facts as established by the evidence most favorable to plaintiff. The plaintiff performed clerical duties for defendants. She started work in 1971. In 1972 she was called for jury duty; however, as she informed defendants, she requested and was granted a 12-month postponement because of her honeymoon. On February 2, 1973, plaintiff was again subpoenaed to serve on the jury. She told defendants and they stated that a month was too long for her 'to be gone.' Defendants gave her a letter which stated defendants could spare plaintiff 'for awhile' but not for a month and asked that she be excused. Plaintiff presented this letter to the court clerk and told the clerk that she had been called before and had to be excused, but she would like to serve on jury duty. The clerk told plaintiff she would not be excused. The plaintiff immediately came back to the office and told defendants that she would have to serve a minimum of two weeks' jury duty. She did not tell defendants she had told the court clerk she really wanted to serve.

Plaintiff started her jury duty on February 26, 1973. On March 1, 1973, she received a termination letter from defendants. The letter stated, in part: 'Although we asked you to request an excusal from Jury Duty and wrote a letter confirming the Labls (defendants') position, it has been brought to our attention you, in fact, requested to be placed on Jury Duty.' The letter went on to state the defendants also were not otherwise satisfied with plaintiff's work. Based upon other evidence, however, the jury could have found plaintiff was not terminated because of dissatisfaction with the quality of plaintiff's work.

A representative of the firm that employed plaintiff after she was terminated by defendants testified one of the defendants told him plaintiff was terminated because she went on jury duty.

Plaintiff testified she suffered emotional distress because of her termination. She secured employment commencing one week after she finished jury duty for a higher salary than she had received from defendants. The jury awarded plaintiff compensatory and punitive damages.

Plaintiff has labeled the tort she contends she pleaded and proved, 'prima facie tort.' This is a label used by some courts, particularly New York. Prosser, Torts (4th ed) 953, n. 96. We used the term in dictum in Wampler v. Palmerton, 250 Or. 65, 79--80, 439 P.2d 601 (1968), and may have been referring to it in dictum in Mandal v. Hoffman Const. Co., or., 527 P.2d 387 (1974). We are of the opinion that the term serves no purpose in Oregon and we will advance the jurisprudence of this state by eliminating it.

In the 19th century the common-law forms of pleading become increasingly rigid. 'The attitude persisted that unless a plaintiff could bring his action under a particular form, label, or category of tort, he should be remediless.' Note, 42 St. Johns L.Rev., 530 (1968); Forkosch, An Analysis of the 'Prima Facie Tort' Cause of Action, 42 Cornell L.Q. 465--475 (1957). Some English judges and legal scholars sought to escape this rigidity by formulating a very general prinipal for the basis of liability for intentional acts. This principle would afford a remedy beyond the confines of the existing tort causes of action.

Mr. Justice Holmes was influenced by writings of the English authorities. In Aikens v. Wisconsin, 195 U.S. 194, 204, 25 S.Ct. 3, 5, 49 L.Ed. 154 (1904), he wrote:

'* * * It has been considered that, prima facie, the intentional infliction of temporal damages is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape. * * *'

The Court held constitutional a statute which punished newspapers, among others, combining to wilfully injure a rival paper.

The New York Court of Appeals stated in Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 84, 70 N.E.2d 401, 403 (1946):

'This difference over the general principles of liability in tort was composed for us in Opera on Tour, Inc. v. Weber, 285 N.Y. 348, 34 N.E.2d 349, 136 A.L.R. 267. We there adopted from Aikens v. State of Wisconsin (supra) the declaration that 'prima facie, the intentional infliction of temporal damage is a cause of action, which * * * requires a justification if the defendant is to escape.' The above second cause of action alleges such a prima facie tort and, therefore, is sufficient in law on its face. American Guild of Musical Artists v. Petrillo, 286 N.Y. 226, 231, 36 N.E.2d 123, 125.'

Thus, 'prima facie tort' was formalized and took its place along with tort labels such as malicious prosecution, strict liability in tort, etc. The New York court transformed a broad basis for liability into a specific tort.

Massachusetts had already adopted the concept but not the label. Halpern, Intentional Torts and the Restatement, 7 Buffalo L.Rev. 7, 10 (1957).

As soon as 'prima facie tort' gained an independent status the controversy began as to its elements. Are special damages required? Is 'malice' required? Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, 54 Northw.U.L.Rev 563 (1959). In the present case counsel have some disagreement whether plaintiff must prove malicious conduct by defendants.

We probably are not in disagreement with the general principle, 'the intentional infliction of temporal damages * * * requires a justification if the defendant is to escape.' Aikens v. Wisconsin, supra, 195 U.S. at 204, 25 S.Ct. at 5. We need not decide that proposition now. We are in disagreement, however, with the proposition that this general principle should be made into a new tort category. The New York experience indicates the difficulties of transposing a very broad principle of liability into a specific tort. In Oregon we do not need to adopt a broad principle of liability as a specific tort category in order to evade the rigidities of existing causes of action.

This court has not felt unduly restricted by the boundaries of pre-existing common-law remedies. We have not hesitated to create or recognize new torts when confronted with conduct causing injuries which we feel should be compensable. 1 The Court met the problem head on in Hinish v. Meier & Frank Co., 166 Or. 482, 113 P.2d 438, 138 A.L.R. 1 (1941). We unanimously created a cause of action for damages suffered by an intentional invasion of the plaintiff's right of privacy. Mr. Justice Lusk wrote:

'* * * The question is whether a right of privacy, distinct and of itself and not incidental to some other long recognized right, is to be accepted by the courts and a violation of the right held actionable. We are called upon, as Mr. Justice Holmes says somewhere, 'to excercise the sovereign prerogative of choice' between the view that the courts for want of a precedent are impotent to grant redress for injury resulting from conduct which universal opinion in a state of civilized society would unhesitatingly condemn as indecent and outrageous, and the view that the common law, with its capacity for growth and expansion and its adaptability to the needs and requirements of changing conditions, contains within itself the resources of principle upon which relief in such a case can be founded. * * *.' 166 Or. at 502--503, 113 P.2d at 446.

We shall direct our inquiry to the question of whether the plaintiff suffered harm which the community would conclude should be compensated because of conduct of the defendants.

We recognize, as defendants assert, that, generally, in the absence of a contract or legislation to the contrary, an employer can discharge an employee at any time and for any cause. Conversely, an employee can quit at any time for any cause. Such termination by the employer or employee is not a breach of contract and ordinarily does not create a tortious cause of action. The question to us is, however, are there instances in which the employer's reason or motive for discharging harms or interferes with an important interest of the community and, therefore, justifies compensation to the employee?

Other courts have held that there are such intances. In Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959), the plaintiff was discharged by his employer for refusing to give perjured testimony before a committee of the legislature. A judgment on the pleadings for the defendant employer was reversed.

In Monge v. Beeve Rubber Company, 114 N.H. 130, 316 A.2d 549 (1974), the plaintiff employee claimed 'she was harassed by her foreman because she refused to go out with him and that his hostility, condoned if not shared by defendant's personnel manager, ultimately resulted in her being fired.' 316 A.2d at 550. The court reversed an order of a trial court setting aside the verdict of the jury in favor of plaintiff.

In Frampton v. Central Indiana Gas Company, 297 N.E.2d 425 (Ind.1973), the plaintiff employee alleged he was discharged for filing a workmen's compensation claim. The...

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